傳染病隔離及檢疫法制之檢討與改革

Review and Reform of the Legal Framework of Isolation and Quarantine for Infectious Diseases Control

新冠肺炎流行期間臺灣實施長達 3 年的大規模隔離及檢疫，雖未出現如和平醫院事件般之巨大人權爭議，卻有比司法院釋字第 690 號所宣告合憲的「強制隔離」措施更加弱化法治原則之疑慮。為使隔離及檢疫法制符合當代公共衛生及法治進展，本文以臺灣防治結核病和麻疹此種一般法定傳染病，以及 SARS 和新冠肺炎 2 次新興傳染病流行之經驗，檢討傳染病防治法（以下簡稱「傳防法」）隔離及檢疫之規範框架。本文發現，傳防法中對人介入手段欠缺體系性規範，隔離及檢疫既無手段定義及實體要件，事前、事後亦無法官保留，然而，司法院釋字第 690 號使此種具緊急法制特徵之法律常態化存在。當新興傳染病突發流行，為避免公眾健康重大危害而需要大規模實施隔離及檢疫時，又因傳防法未提供適當法律框架、法律準備不足，行政機關更加仰賴概括規定與寬鬆的手段目的適當性及必要性衡量，提審法院亦低度實踐程序要求，並延續司法院釋字第 690 號以訴願權取代憲法對人身自由之即時救濟權，使得法律運作實況更加緊急化。傳防法應就常態下對一般法定傳染病實施隔離或檢疫防治依嚴格違憲審查標準明定手段定義、實體要件與正當程序；在突發新興傳染病流行且構成緊急公衛事件時，亦須明確化擴大行政權權力之機制、要件與程序，使隔離及檢疫法制能在不同公衛風險下平衡控制新興傳染病大規模流行之公衛需求及保障人身自由。

During the COVID-19 epidemic, Taiwan implemented a three-year large-scale isolation and quarantine. Although there was no such huge human rights controversy as the Heping Hospital incident, there are concerns that these isolation and quarantine measures weakened the rule of law compared to the
"compulsory isolation" measure, of which constitutionality was confirmed by Judicial Yuan Interpretation No. 690. To keep in line with the progress of contemporary public health and the rule of law, this article reviews the isolation and quarantine regulatory framework based on Taiwan’s experiences in controlling two general reportable infectious diseases (tuberculosis and measles) as well as two emerging infectious diseases (SARS and COVID-19). This paper finds that the contents of the Communicable Disease Control Act are fragmented in regulating intervention measures taken against individuals. There is no definition of means and substantive elements for isolation and quarantine and no judicial reservation before or after the event. However, the interpretation of No. 690 makes this kind of law with the characteristics of emergency laws exist
normally. When large-scale isolation and quarantine are needed to prevent significant public health risks in an outbreak of emerging infectious diseases, the law fails to provide a responsive legal framework. As a result, public health officials expand the use of general clauses and weaken the principle of proportionality. The court also kept the procedural requirements low and continued to replace the constitutional right to immediate relief for personal freedom with the right of appeal, as Interpretation No. 690 announced. The law should specify the definition of means, substantive requirements, and procedural guarantees for the implementation of isolation or quarantine under normal conditions for the control of general reportable infectious diseases following the standard of strict scrutiny. For public health emergencies triggered by epidemics of emerging infectious diseases, it is necessary to clarify the mechanism for expanding administrative power, the elements, and the procedures. The legal system should be prepared to balance the public health needs of controlling the epidemic of emerging infectious diseases and protecting personal freedom under different public health risks.